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ARGUMENT, WITH STATEMENT OF FACTS 



SWORN TO, AND CITATIONS FROM THE 

CONSTITUTION AND LAWS OF LOUISIANA, 

TO SHOW THAT THE TEMPORARY AND PERMANENT ORGANIZATION OF 

THE HOUSE OP REPRESENTATIVES 

OF THE STATE OF LOUISIANA, 

ON THE 4th of JANUARY, 1875, UNDER WHICH ORGANIZATION 

L. A. ^^^ILTZ, 

REPRESENTING THE DEMOCRATIC CONSERVATIVE PARTY, WAS LAWFULLY ELECTED 

TEMPORARY AND PERMANENT SPEAKER, WERE IN STRICT 

ACCORDANCE WITH LAW AND PR/ECEDENT. 




Clark & Hofeline, Book Printers, 112 Gravier Street. 



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STATEMENT OF FACTS AND LAW. 



To the Honorable Charles Foster, William Walter Phelps, 
and Clarkson N. Potter, Congressional Committee on 
Louisiana Affairs, Sitting in New Orleans : 

I. As TO THE Democratic-Conservative Organization. 

The total number of Representatives to which the 
people of Louisiana were entitled at this session was one 
hundred and eleven (111). The Returning Board, prior 
to the 4th of January, 1875, had furnished the Secretary 
of State with a list of one hundred and six (lOG) mem- 
bers upon whose election said Board had passed, of which 
number fifty-four (54) were supposed to be Republicans, 
and fifty-two (52) Conservatives and Democrats. 

A.t twelve o'clock on the 4th day of January, 1875, 
the day prescribed by law for the meeting of the General 
Assembly, the House being assembled, William Vigers, 
Clei'k of the preceding House of Representatives, whose 
term of olKce hud expired on the 4th of November, 1874, 
[)rc)ceeded to call the roll, under the forty-fourth section 
of Act No. 98, approved November 20th, 1872, which 
section declares : 

" That it shall -be the duty of the Secretary of State to 
transmit to the Clerk of the House of Representatives, 
and the Secretary of the Senate of the last- General As- 



• [ 2 ] 

sembly, a list of the names of such persons as, according to 
the returns, shall have been elected to either branch of the 
General Assembly ; and it shall be the duty of the said 
Clerk and Secretary to place the names of the Represent- 
atives and Senators elect so furnished upon the roll of the 
Senate and of the House respectively ; and those Repre- 
sentatives and Senators whose names are so placed by the 
Clerk and Secretary respectively, in accordance with the 
foregoing provisions, and no other, shall be competent to 
organize the House of Representatives or Senate. Nothing 
in this Act shall be construed to conflict with Article 
thlrtjj-four of the Constitution of the State." 

Article 34 of the Constitution provides that each house 
of the General Assembly shall judge of the qualifications, 
elections and returns of its members ; but a contested 
election shall be^ determined in such manner as may be 
prescribed by law. 

Article 33 of the Constitution provides that not less 
'?'. tlmn ii»j*>«j»«4y of members of each ho use of tlie General 
Assembly shall form a quorum to transact businessj_but 
a smaller number may adjourn from day to day, and 
shall have full power to compel the attendance of absent 
members. 

Article 20 of the Constitution provides that each parish 
in the State shall be entitled to at least one Representa- 
tive. 

Article 36 of the Constitution provides that each house 
of the General Assembly shall keep and publish weekly 
a journal of its proceedings, and the yeas and nays of the 



I 



[ 3 ] 

members on any question, at the request of any two of 
tliem, shall be entered on the journal. 

After the completion of the roll-call by William Vigers, 
Clerk of the former House, as provided by Section forty- 
four, above recited, L. A, Wiltz was nominated as tem- 
porary Chairman by a member, and was, upon a viva 
voce vote, declared elected temporary Speaker, whereupon 
he took the chair, and announced himself temporary 
Speaker of the House of Representatives, and as such 
took his oath of office before Judge Houston, and also 
had said oath administered to him by a member. He 
thereupon administered the oaths to the members of the 
House. He then declared the functions of the former 
Clerk, Vigers, at an end. A Clerk was then, on motion, 
nominated and elected. A Sergeant-at-Arms and assist- 
ants were also elected. 

During this temporary organization, upon motion put 

and adopted, the five members whose elections the 
Returning Boa rd had not promulgated mid hnd re ferred 
~to the House, were admitted as members and sworn in. 
Thereafter L. A. Wiltz was nominated as permanent 
Speaker. Th.e roll was called, and Wiltz. and Hahn being 
in nomination, Wiltz received 55 votes. Hahn 2, and 1 
blank. Fifty-six being a majority and legal quorum of 
the whole number, one hundred and eleven, to which \^ 
the House was entitled, he was thereupon declared duly 
elected permanent Speaker, and was sworn in and ^ 
then administered the oath to the members (by fours), 
including Michael Hahn, Thomas Baker, Murrell and 



[ 4 ] 

Drury, Republicans. A Committee on Credentials was 
then appointed, of which Hahn and Thomas were ap- 
pointed members and accepted, and withdrew with the 
Committee. Upon the return to the House of said Com- 
mittee, Hahn made known that he would make a minor- 
ity report. 

About this time, resistance being made to the Ser- 
geant-at-arms of the House, and there being great danger 
of violence and bloodshed, the force of the Sergeants-at- 
arms, consisting of only some ten men, the State House 
being crowded on the inside and outside with Metropoli- 
tan Police and other unruly persons, said Police, on the 
outside being supported by a large array of United 
States soldiers, the Speaker, upon motion of Dupre, a 
member of the House, put and carried, requested General 
De Tro1)riaiKl, who had pre i- ion -si ij eidered the State House, ac- 
companied hy some United States troops, without the hiowledge 
or request of the Sj)e((hrr,io speak a few words to the persons 
in the lobby, the Speaker expressing the opinion that the 
General's remonstrance would prevent a riot, whicli was 
imminent. The Genai\al complied with the request, and 
without the use of any force, restored comparative quiet 
in the lobby. No other intervention by the United 
States authorities tvas asl-ed for or obtained. This re- 
quest was made, as above stated, after the General and 
some soldiers had entered the room. 

About an liour after this, order being full?/ restored, 
General De Trobriand returned, and informed the 
Speaker tliat he had been ordered by Governor Kellogg 



[ 5 ] 

• 

to replace Vigers as Clerk, and to eject the five mem- 
bers above referred to, upon whose cases the Returning 
Board had failed to report, and desired to know whether 
his orders would be complied with without the use of 
force. The Speaker replied that he was the lawful 
Speaker of the House of Representatives of the State of 
Louisiana, and would obey no order from Governor Kel- 
logg, or any other source, unless compelled so to do by 
actual ovei'powering force, whereupon the General re- 
tired and soon returned with soldiers and requested the 
Speaker to point out the members indicated in his order 
from Kellogg for ejectment, the General not knowirvg 
them personally. This relucst was also promptly re- 
fused ; whereupon General Campbell and T. C. Ander- 
son, the former General of Kellogg's militia, by which he 
was surrounded in and out of the State House, the 
latter a member of tlie Wells Returning Board, neither 
being members of the House, were called upon, and 
pointed out the desired members, who were thereupon 
seized, each by United States soldiers, with guns and 
fixed bayonets, and were forced out of the State House 
against their oft repeated protests. 

Immediately upon this action by the Military Authori- 
ties of the United States, the Speaker requested the Con- 
servative members to retire with him, which was done 
without exception. Genl. De Trobriand then ordered 
Mr. Vigers to call the roll, whereupon Speaker Wiltz 
reiterated his refusal to allow him to make such call, 
Vigers persisting, Wiltz had him forcibly ejected by his 



[ 6 ] . 

Sergeant-at-arms. During all of these proceedings, the 
Speaker reiterated his protests and refusals to submit to 
any interference, unless compelled by overwhelming force. 
Such force was used by the United States Military Author- 
ities, and to it alone he yielded. 

II. As TO THE PRETENDED REPUBLICAN ORGANIZATION. 

After the withdrawal of Wiltz and the Conservative 
members, Vigers was restored to the position of Clerk, 
by General De Trobriand, Ilahn was elected by acclama- 
tion Speaker, and administered the oath to the members 
in groups of four. Immediately thereafter, a resolution 
was adopted, seating four persons from the parishes turned 
over to the legislature by the Returning Board for de- 
cision. The oath was administered to them, an election 
for Clerk was then proceeded with ; at which Vigers was 
declared elected. 

Upon the calling of the roll, for the election of perma- 
nent Speaker, only fifty answers were made. Both Hahn 
and Vigers testified on the 6th of January, 1875, before'- 
your Honorable Committee, that this was the number who 
answered the roll call when the vote was cast for Speaker, 
but claimed that two names that had answered upon a 
previous call of the roll, which call was stopped by Witzl 
before he retired, were added to make the fifty-two. This 
in the largest number claimed hy tlie tivo witnesses above men- 
tioned when under oath before the Committee. Two of 
this number as before said, were of those who retired with 
Wiltz, and whose affidavits accompany this statement, 



[ " ] 

showing that they were not present when Vigers called 
the roll de novo. But even if present and properly added 
they would not have completed a quorum, as under article 
33 of the Constitution, not less than a majority of the 
members elect shall form a quorum. The number elected 
was one hundred and eleven, of which fifty-six is a quo- 
rum. 

THE LAW OF THE CASE. 

The only measure of the authority of an outgoing 
Legislature, as to an incoming Legislature, must of neces- 
sity be the Constitution of the State. 

The House of Representatives which assembled Janu- 
ary 4th, 1875, in the State House of Louisiana, was as 
free from any regulation imposed by' the preceding 
Legislature, as was the first House that assembled in the 
State, unless a distinct provision can be found in the 
Constitution authorizing such regulation. 

Does the Constitution of Louisiana of 1868 contain 
rny clause which warranted the enactment of Section 44, 
Act No. 98, approved November 20th, 1872? 

The language of this Section is quoted in the above 
statement of facts and law. What is the extent of the 
Clerk's powers under this law ? 

" And it shall be the duty of the said Clerk and Secre- 
tary to place the names of the Representatives and Sena- 
tors elect so furnished upon the roll of the House and 
Senate respectively." 

There is no other portion of the Section which relates to 



[ 8 ] 

the duties or powers of the Clerk. His duties are strictly 
limited and entirely ininisterial. 

He calls the roll merely by the grace of the House, in 
accordance with custom, and the moment he completes 
the roll call his functions are ended. The manner of or- 
ganization then belongs exclusively to the House. 

But it is urged that Section 44 of this Act prescribes 
that no others, than those thus placed on the roll by the 
Clerk, are competent to organize the House. 

How can the rights of the House which met January 
4th, 1875, be less than that which adjourned March 1st, 
1874, unless the House of 1874 was given power in the 
Constitution to abridge the rights and privileges of its 
successors ? 

Not a word can be found in the Constitution even look- 
ing towards such an authorization. On the contrary, 
Article 34, quoted in the statement of facts and law, 
specially provides that each house of the General Assem- 
bly shall judge of the qualifications, elections and returns 
of its members. 

The plain language of this article shows that the con- 
vention which formed the Constitution was careful to 
prohibit the Senate and Executive from any interference 
with the qualifications, elections and returns of the mem- 
bers of the House. The specific Constitutional provision 
as to contesting seats, following immediately the provision 
in Article 34, that "eocA House of the General Assembly 
shall judge of the qualifications, elections and returns of 
its members," excludes the idea that either House of 



[ 9 ] 

the General Assembly can be controlled in deciding upon 
the qualifications, elections and returns of its members 
by a law which requires the approval of the Senate and 
Executive. This provision was intended to secure the in- 
dependence of the House from the influence of the Senate 
and Executive, and is almost a duplicate of the provisions 
contained in all of the State Constitutions, and is in the 
exact words of the first clause of the fifth Section of the 
first Article of the Constitution of the United States. 

How many are a quorum ? Article 33 of the Constitu- 
tion declares "that not less than a majority of the members 
of each house of the General Assembly shall form a 
quorum to transact business, but a smaller nuinber may 
adjourn from day to day, and .shall have full power to 
compel the attendance of absent members." 

The 20th Article of the Constitution provides "that 
eaeli parish shall be entitled to at least one Representa- 
tive." 

Construing the thirty-third Article, which requires a 
majority of the memljers of each house to form a quorum, 
with Article 20, which requires that each parish shall be 
entitled to at least oiie Representative, and Article 46, 
which requires returns of all elections for members of the 
General Assembly to be made, the conclusion is inevitable 
that a legal quorum, under the Constitution, must be a 
majority of the whole number of Representatives to which 
the State is entitled, to-wit : Fifty-six — a majority of one 
hundred and eleven. 

To construe Section 44 of Act of 1872, as authorizing 



[ 10 ] 

a quorum to be constituted of a majority of the members 
that may be returned by the Returning Board, is to annul 
by statute the constitutional provisions contained in Arti- 
cles 20. 33 and 46. Such a construction leads to a reductio 
ml ahsnriliim. The Returning Board, who referred in 
this election the claims of five Representatives, repre- 
senting /o//y- parishes, to the Legislature for decision, had, 
under the law, the same rtght to have referred fifty or one 
hundred; or one hundred and ten, leaving one man to or- 
ganize the House. 

It is well settled that when the Returning Board had 
dissolved, referring the decision as to the claims of certain 
parties to seats, to the House, its powers in the premises 
were ended. 

12 Barbour's Reports (N. Y. Supreme Court), 217, The 
People, e:r rel. Alexander H. Bailey, vs. The Supervisors 
of Greene. 

To deny the right of the House to decide upon the 
prima facie rights of claimants to seats, would be to deny, 
altogether, under certain circumstances, the right to or- 
ganize, and would i2;ivo the Returning Board absolute 
power to disfranchise the people of the whole State. 

A precedent for the mode of the temporary organization 
adopted by the House of Representatives of the State of 
Louisiana on the 4th of January, 1875, was established 
during the first session of the twenty-sixth Congress of the 
United States. 

See Congressional Globe, volume 8, from pages 1 to 21 
inclusive. 



Lii ] 

The House of Representatives assembled on Wednesday, 
December '22)k1, 18o9, On the oth of December, 1839, 
being still without a temporary organization, Mr, Adams 
(p. 19) arose and said: "I am under the necessity of 
appealing to you, fellow-citizens, to set aside the decisions 
of the Clerk, and act for yourselves. I propose that the 
House shall act in whatever form it pleases ; it may choose 
a temporary Clerk or not, as it is thinks proper. I put 
this question to the majority of the House. It is their 
dut}' to organize it, and therefore they ought, as a prelimi- 
nary step, to put themselves in such a situation that no 
decision of the Clerk can force upon the House an organi- 
zation in the manner he dictates. The House may set 
aside the Clerk, but is not forced to obey his despotical 
dictates." The Clerk had refused, and was refusing, to call 
the names of the members fr6m New Jersey, their 
names not appearing on the roll, which he had made up in 
accordance with past usage. He had omitted to place 
theni on the roll because two sets of claimants appeared 
for the seats. Mr. Rhett (p. 19) then offered a resolution 
that Louis Williams, the oldest member of the House, be 
api)>inted Chairuan of this meeting until the House 
orgiiuize. Mr. Williams declining to take the chair, Mr. 
Rhett (p. 20) ''then varied his motion, so as to call Mr. 
Adams to the chair instead of Mr. Williams, and putting 
liimscJf the question to the meeting, it was- carried, and 
Mr. Adams took the chair." The temporary organization 
of the House was thus effected. 

During this temporary organization, Mr. Duncan (p. 



[.12 ] 

26) observed "that he understood yesterday, that after 
the appointment of a chairman the rules of the hist House 
of Representatives were adopted for the governance of 
this House, for the time being. One of these rules required 
that the yeas and nays should be called alphabetically. 
Now he wished to know of the Chair, if the yeas and 
nays would be called if demanded, and how. The Chair 
stated that the rule did not apphj, because the organiza- 
tion of the House was not completed. The yeas and nays 
therefore could not be called." 

Thereafter the question arose on the second branch of 
Mr. Rhett's resolution in the following words, " and after 
the names of such members are called, and before a 
Speaker is elected, they shall, provided there be a quorum 
of such present, then hear and adjudge upon the election 
returns, and qualifications, of all claimants (Messrs. 
IngersoU and Naylor excepted) to the seats contested on 
this floor, which motion was carried, yeas, 138, nays, 92.' 
During the progress of this debate (p. 53). Mr. Wise 
said : " In order to illustrate the position of my colleague, 
I will state th;it the Chair decides that he cannot put the 
question on his appeal while the election is going on. 
Now, from that very decision my colleague has a right to 
appeal. The Chair said, the motion of the gentlemen 
could be offered when a Speaker was chosen, but that he 
could iiot take an appeal when the House was in the act 
of electing a Speaker. Mr. Wise then said : '• Here is a 
decision that an appeal cannot be taken. It is not com- 
petent for my colleague to take an appeal from thatdeci- 
ion.' Tlie Chair, ' Certainly not, Sir.' " 



[13 ] 

Under the Constitution of Louisiana, before quoted 
Article 36, no call for yeas and nays is allowable, even in 
permanent organization, unless demanded by tiuo mem- 
bers, and there is no- constitutional right of appeal from 
the decision of the Chair. 

In the organization of the House resulting in the elect- 
ion of Mr. Wiltz as Speaker, no two members called for 
yeas and nays, and no appeal of any kind was taken from 
the ruling of Mr. Wiltz, either as temporary or perma- 
nent Speaker. 

The temporary organization by which Mr. Wiltz was 
called to the Chair, was made when there were 102 mem- 
bers present, an ample constitutional quorum. There was a 
vote in his favor, and no votes against him. He thus 
became temporary Chairman, without any opposition of 
a body composed of 102 members. 

The statute of 1872 cannot be uro:ed a£i;ainst this, be- 
cause the persons present were the same persons named 
in the statute, having been returned by the Returning 
Board.* 

The next step was equally legal. Five members, rep- 
resenting four parishes, had been elected, and the returns 
showed that they had been elected. Under Article 4G 
the Returning Board should have returned their names 
to the Secretary of State, and he to the Clerk, for the 
article specifically requires the returns of all elections to 
be so. made*. 

No one was contesting their seats. Their irrlmii facie 
title was clearly without dispute. 



[ 14 ] 

The seating in no manner affected the right of after- 
contestation. Mr. Wiltz and his poUtical friends in the 
House would have violated Article 46 of the Constitution 
if they had not admitted them to a voice in the election 
of a permanent Speaker. 

They were therefore properly admitted, care being taken 
to reserve the right of any one who chose to contest their 
seats. 

The body then proceeded to elect a permanent Speaker, 
and upon this vote an ample quorum was present, and 
more than a legal quorum voted, there being fifty-five 
votes for Wiltz and three for opposition Republican can- 
didates. 

Mr. Wiltz thus became legal permanent Speaker. 

A Committee on Credentials was then appointed, of 
which Michael Hahn was a member, and he retired with 
the Committee. The Committee returned, after some de- 
lay, and reported in favor of admitting sundry other 
members, and Mr. Hahn reserved his right of making a 
minority report. During the whole proceedings there 
were no appeals taken from the rulings of either the tem- 
porary Chairman or permanent Speaker. 

Thus was organized the House of Representatives of 
Louisiana, the fourth day of January, 1875, in strict ac- 
cordance with the Constitution of the State and precedent. 
This organization was destroyed by the interference of 
Federal troops, to whom the Legislature refiused to sub- 
mit until overpowered and compelled hy actual force. 

Whether this armed intervention is to stand as a i>rece- 



[ 15 ] 

denf becomes a vital question to every State in the 
Union. 

JOHN H. KENNARD, 

Of Counsel for Committee of Seventy before Congressional Committee. 



L. A. Wiltz, being duly sworn, deposes and says, that" 
he has carefully read and critically examined the facts 
and figures contained in the above brief, as to the organi- 
zation of the House of Representatives of the State of 
Louisiana, on the 4th day of January, 1875, and of his 
own knowledge knows them to be true. 

Louis A. Wiltz. 
Subscribed and sworn to before me on 

this 11th of January, A. d. 1875. 

J. G. EusTis, 

United Sti lies Commissioner for the District of Louisiana. 



